The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Tuesday, September 11, 2012

Return of the Posner

Posner criticized the Scalia/Garner book on the interpretation of legal texts.
Garner responded.
Posner now issues this short reply here. I like it:

Garner says that what I think are mistakes in the book’s description
of cases are merely the result of the authors’ decision to “exclude
other factors besides the canon” (statutory principle) that each case
illustrates “because the examples are there merely to show how each
particular canon works” and so the fact “that a given court considered
other factors besides the canon is quite irrelevant to our purposes.”
That is untrue. When they say that a court “perversely held that
roosters are not ‘animals’” they are saying that a court erred by
failing to follow a dictionary definition; in fact the court said that
roosters are animals, but then gave reasons why this was not
dispositive, reasons Scalia and Garner ignore. Garner now says “it would
be very hard to find examples in which a single canon was the sole
basis for the decision.” Precisely! The authors aren’t going to pin
themselves down to a canon that might generate a result they don’t like.
They want to play with 57 canons, many of them as I pointed out not
textual.
Their approach is typified by the example Garner gives in his letter
of a sign that reads “no person may bring a vehicle into the park.”
Early in the book the authors say that an ordinance that excludes
ambulances from the prohibition “is not the ordinance that the city
council adopted,” for an ambulance is a vehicle. Hundreds of pages later
they retract that conclusion, citing the common law defense of
necessity. Garner in his letter calls this retraction an example of
“nuance,” an appeal to a “mitigating doctrine.” I call it having a
pocketful of nontextual interpretive principles to draw on whenever
textual originalism produces dumb results, such as barring ambulances on
rescue missions from parks because the dictionary says an ambulance is a
vehicle.

I particularly like this paragraph:

He says I cite only six examples of cases that the book misrepresents.
True, but I had space limitations. So here’s a seventh, and I will be
glad to furnish others on demand. The authors summarize a well-known
opinion by Holmes (McBoyle v. United States) tersely:
“’automobile, automobile truck, automobile wagon, motor cycle, or any
other self-propelled vehicle not designed for running on rails’”—held
not to apply to an airplane.” They use this to illustrate the statutory
principle called eiusdem generis, which is Latin for “of the same
kind” and means that in a list of specifics that ends with a general
term (for example, “cats, dogs, and other animals”) the general term
should be interpreted to be similar to the listed terms (so “animals”
would not include human beings). The statute under which McBoyle was
convicted criminalized the transportation in interstate commerce of a
“motor vehicle” known to have been stolen. Scalia and Garner do not
mention “motor vehicle,” but consider only whether an airplane (the
stolen property that McBoyle had transported across state lines) is the
same kind of thing as an automobile, an automobile truck, etc. For
Holmes the question was whether an airplane is a “motor vehicle,” and
while he alluded to without naming the principle of eiusdem generis,
his principal ground for reversing McBoyle’s conviction was unrelated
to that principle; it was that in ordinary speech an airplane is not a
motor vehicle and that a conviction for a poorly defined crime should
not be allowed. He also mentioned legislative history (anathema to
Scalia and Garner) in support of his interpretation. All this Scalia and
Garner ignore.

2 comments:

Posner is out in left field here. He still doesn't realize that the cases are simply to illustrate the canons using real-world examples, and are not to demonstrate the superiority of the textualist approach. And his absurd, ad hominen intro is bizarre. How about engaging ONE of Whelan's substantive criticisms rather than mocking him?

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.